Lyomark Pharma GmbH
I. Scope, written form
- Our deliveries and services (referred to below as “deliveries”), including in particular the related advice and information, are provided to companies solely on the basis of these general terms and conditions. This likewise applies to all future business relationships, also if not again expressly agreed.
- The purchasing terms of the contractual partner (referred to below as the “purchaser”) apply only if explicitly accepted by us in writing. This requirement for acceptance applies throughout and also, in particular, if we deliver to the customer without reservation in the knowledge of the customer’s contrary terms.
- These GTCs are acknowledged by the customer on placing an order or on accepting the first delivery at the latest.
- All our declarations based on this contract, contractual modifications and collateral agreements must be made in writing if they are to be effective (also by fax, email). This requirement may be waived only in writing.
II. Conclusion of contract, quantity variance, quality
- Our offers are subject to change without notice. A contract is only deemed concluded once we have confirmed it in writing or delivery has taken place. With respect to the content of individual agreements, the written contract or at least the written confirmation of the contract is for our part decisive.
- We have the right to accept or refuse an order from the purchaser within two weeks after receipt.
- A variance of up to 10% in the confirmed quantity is permissible on technical grounds.
- Agreements concerning the quality of the goods shall be based solely on our description of the product and the potential use that we have expressly acknowledged. Public claims or product designations shall not effectively determine the quality of the goods.
III. Delivery, delivery schedule, partial quantities, call-up orders
- Delivery ensues ex-works.
- Delivery schedules are not binding unless confirmed by us in writing as binding. Unless agreed otherwise, the delivery period is two weeks. If no performance period has been defined, delivery periods commence upon conclusion of the contract.
- Where warranted, we may complete deliveries in part, to a reasonable extent, insofar as the purchaser, given the nature of the contracted service, is not entitled to expect full delivery.
- In case of call-up orders, we are entitled to procure the tools and materials necessary for fulfilling the entire order and to manufacture the entire ordered quantity immediately. Changes on the part of the purchaser thus cannot be taken into consideration unless explicitly agreed.
If no alternative regulations are agreed in the supply contract, the released volume per day shall be determined by taking the reported annual required volume over 250 working days and the released volume per week over 50 calendar weeks, in each case based on single-shift operation.
The purchaser may modify his order within the standard industry fluctuation margin of +/- 10% of the ordered volume by issuing a unilateral statement. Any such change in volume must be declared no later than six weeks prior to the start of delivery.
Greater deviations from the ordered volume are only binding if we have agreed to a corresponding change in the volume. We may demand a price adjustment, accordingly.
IV. Self-delivery, delivery disruptions
- A contract is concluded in the event that fulfilment of the purchaser’s order and our acceptance of the order necessitate a congruent hedging transaction with a supplier, subject to correct and punctual delivery from the supplier under the proviso that failure to deliver is beyond our control.
- If the delivery period is exceeded, the purchaser may not withdraw from the purchase agreement or claim for compensation if we have undertaken to deliver within an appropriate waiting period. The purchaser is obliged to grant us, in writing, an appropriate grace period of at least two weeks.
- If delivery periods cannot be honoured due to circumstances beyond our control or the control of our suppliers, a reasonable extension to the delivery periods must be agreed between the involved parties. This applies in particular to operational, traffic or transport disruptions, fire, water, explosion, theft, staff shortages, energy, raw or auxiliary materials, strikes and lockouts, official decrees and other such circumstances (“force majeure”). The purchaser will be informed immediately of such situations.
- If delays due to extraordinary circumstances as mentioned above exceed 12 weeks, we or the purchaser may rescind the contract insofar as continuation of the contract is no longer feasible. If the contract is rescinded, we will refund any corresponding payment already received without delay.
- We are not obliged to guarantee delivery of the ordered goods after production has ended unless otherwise agreed in writing between the parties.
V. Assumption of risk and transport insurance
The transport risk is transferred to the purchaser upon releasing the goods from the factory to the forwarding agent, irrespective of for whom, at whose expense and from where the shipment is made. We are only obliged to provide transport insurance and pay the premiums if explicitly agreed in writing.
VI. Prices, payment, offsetting, assignment
- Net prices are charged in euros, subject to the statutory level of sales tax at the time of delivery. The costs of transportation/shipment are payable by the purchaser. If delivery is agreed contractually to ensue later than eight weeks after conclusion of the contract, we are entitled to adjust our prices to reflect any increase in the cost of manufacture (especially higher raw material prices) or shipment, insofar as we are required to cover such costs.
- Full payment is due immediately upon delivery unless other terms have been agreed in writing. Any deterioration in the purchaser’s financial situation or other potential risk to the claim entitle us to revoke an agreed payment term.
- If the agreed payment term is exceeded, the purchaser will be in arrears; a separate reminder is not necessary. In the event of default, all our claims against the purchaser – including other contracts – will be due for immediate payment. We reserve all rights to assert legal claims in case of default.
- The purchaser is entitled to offset claims only if counter-claims are undisputed or have been legally recognised. The regulation under Section 354a of the German Commercial Code (Handelsgesetzbuch, HGB) remains affected.
The purchaser has no right of retention in respect of payments if the counter-claim is not related to the same contractual relationship.
- If, in case of call-up orders, the purchaser does not accept the minimum quantities agreed in the general supply contract over the period of a month or year, he shall nevertheless be obliged to pay for the agreed minimum quantities. If we succeed in selling the product to a third party, the payable amount shall be reduced by the sum of our production costs.
- If the contract is a works (supply) agreement that can be terminated by the purchaser in accordance with works contract provisions without a compelling reason, we shall be compensated as follows (Section 649, Para. 1, p. 2 of the German Civil Code [Bundesgesetzbuch, BGB]): The costs arising from our project documentation, along with our incurred development costs, until the time of termination.
VII. Letters of credit
An irrevocable and confirmed letter of credit must be opened in our favour with a major international bank prior to every export shipment. No retention of title (VIII) shall prevail in such a case.
VIII. Retention of title, security assignment
- We retain the title to the goods until all claims arising from the current business relationship have been settled in full. This also applies to claims arising in the future and to balance claims arising from a current account relationship.
- The purchaser has the revocable right to resell the goods within the scope of ordinary business practice. Pledging and assigning security on goods under retention of title is not permitted.
- The purchaser is obliged to handle such reserved goods with care and insure them at his own expense for the original value against damage from fire, water and against theft. The purchaser will notify us immediately of third-party interference with the reserved goods or of other infringements. If the third party is not able to compensate us for the legal or out-of-court costs incurred in this respect, the purchaser shall assume liability.
- Processing of the goods by the purchaser shall always ensue in our name and on our behalf, until the claims from the current business relationship have been settled in full. In case of processing with third-party materials, we shall retain co-title in the ratio of the value of the goods we have delivered to the other materials. The same applies to mixing with third-party items.
- If we lose title to the goods as stated in the paragraphs above or through other circumstances, or if they are damaged and third-party claims are made against the purchaser due to loss or damage, the purchaser shall assign these claims to us up to the amount of our invoice, or proportionally based on our share of title if the purchaser has co-title to the goods. Assignment shall also include current account claims of the purchaser against his customers, whereby instead of the final invoice amounts the respective, last recognised balance shall apply and in case of insolvency of the contractual partner any remaining surplus, i.e. the causal balance. The same applies to insurance claims or claims from unlawful actions in case of loss or destruction. The purchaser is entitled to collect a claim after assignment. Proceeds shall pass on to us insofar as our claims are payable in the achieved amount. However, we retain the right to collect the claim ourselves as soon as the purchaser is in arrears. The purchaser may not assign these claims such that they can be collected by way of factoring, unless he obligates the factor irrevocably to pass on the proceeds to us directly for as long as our claims continue to exist.
- We undertake to release the securities to which we are entitled insofar as the realisable value of the goods under title exceeds – not only temporarily – the claims to be secured by 110%. We are at liberty to choose which securities are to be released.
IX. Warranty, statute of limitation, duty to report defects
- We initially accept liability, as legally stipulated, at our own discretion by offering repair or replacement. Aside from the contractual agreements, our description of the product alone is the benchmark for the due quality of the goods and not the public claims, advertising messages, etc. made by other manufacturers, pre-suppliers or third parties. If articles are produced and delivered according to drafts or drawings provided by the purchaser, we offer a warranty only on the execution of the delivered items in agreement with the purchaser’s documentation. No guarantee is provided for the suitability of the intended purpose assumed by the purchaser. No consideration shall be given to any insignificant reduction in the value or suitability of the goods in case of defects. If there is in fact a defect, we shall bear the costs arising from inspection and supplementary performance, particularly transport, road, labour and material costs. However, should the purchaser’s demand for corrective action prove unwarranted, we may request reimbursement from the purchaser for the resulting costs.
If an attempted repair or replacement fails, or in case of a genuine and definitive repudiation on our part, the purchaser may demand rescission or price reduction only, and reduction only in case of minor defects.
- The warranty period is one year from delivery. Any claims for compensation are subject to the limitations in section X.
- The purchaser is required to report identifiable defects both in terms of quantity and quality immediately following receipt of the goods; otherwise, no warranty claims may be made. Defects that are not identifiable upon inspection of the incoming goods must be reported as soon as they come to light.
- In the event of processing or finishing the delivered goods prior to expiry of the complaint period, the purchaser’s complaint concerning all identifiable defects in all delivered articles of one single order is excluded. The approval of samples or pilot batches by the purchaser precludes any later complaint concerning deficient products, provided the delivered products are consistent with the approved samples.
- The purchaser shall bear the full burden of proof in relation to all preconditions for making a warranty claim, especially for the defect itself, the time it is identified, and the timely notification of the complaint.
X. Liability limitations, statute of limitation
- We are not liable for the improper use of our products.
In case of minor breaches of duty we shall be liable – irrespective of the legal grounds – only for violating substantial contractual obligations and only for foreseeable, average damages characteristic of a contract according to the nature of the goods.
- All limitations of liability also apply to our legal representatives, vicarious agents and assistants.
- For damages resulting from injury to life, body or health, we shall be liable as defined by the pertinent laws.
- Claims of any nature made against us, especially claims for damages and reimbursement of expenses, are subject to a limitation period of one year following delivery or performance of a service. Claims arising from injury to life, body or health and cases of damage caused by us through intent or gross negligence, malice, and claims based on product liability law, thereby remain unaffected. We accept no liability beyond that stipulated by German law.
XI. Third-party protection rights
- Insofar as we produce or deliver products according to formulations or samples provided to us by the purchaser, the purchaser shall guarantee that the property rights of third parties are not violated by the manufacture and the use of the delivered products and their delivery, and shall indemnify us from claims for damages made by third parties. In such cases, the contractual partner shall upon request afford us legal assistance or enter into any litigation at his own expense.
- The indemnification covers all expenses incurred in relation to the claim made by the third party.
- The period of limitation for indemnity claims is two years as of knowledge or grossly negligent ignorance of the circumstances that justify the claim.
XII. Copyright, property, expenditure on preliminary studies
- With respect to the products we distribute, prior projects and preliminary studies, drawings and documentation that we have designed or that are based on our data, we shall retain the commercial property rights and copyrights to which we are entitled, including ownership of the compiled data, documents, drawings and illustrations, or other such items. Documents and data subject to copyright are to be treated confidentially in accordance with section XIII of these terms and conditions.
- We reserve the right to charge an appropriate and customary fee for the studies undertaken on behalf of the purchaser, if orders based on such activities are not forthcoming within three months after presentation of the studies.
XIII. Protection of business relationships, contractual penalties
- Without our written agreement, the purchaser may not, either personally or via third parties, establish contact or negotiate or conclude contracts with our contractors concerning the articles covered by the contract, their further development, and any successor products during the period of the contract to which these terms and conditions apply and for a further two years after termination of the given contract. “Contractors” in the sense of the above clause are those business partners with whom, at the time of concluding this contract, we had a service relationship in the area of procurement for delivering goods and services, or with whom we had or have a business relationship until termination of this contract. The presentation of contracts, order confirmations or other documents such as delivery notes, invoices, consignment notes, suffice as evidence of an existing business relationship.
- The purchaser is not entitled to demand information from us about our contractors and their services beyond that necessary for fulfilling our legal obligations. The purchaser is obliged in all instances to keep confidential all other contractual partners and business transactions of which he becomes aware.
- In each instance of a culpable breach of any of the above provisions concerning the protection of article-related service relationships in commercial transactions, the purchaser shall be required to pay a contractual penalty of 15% of the net revenue generated between the contractor and purchaser, with exclusion of the continued relationship in case of intent. Additional claims for damages on our part thereby remain unaffected.
- The purchaser shall inform us immediately if approached by our contractors within two years after termination of this contract. If we are not prepared to perform the service offered by our contractors to the purchaser ourselves or through a third party at normal market conditions, the purchaser may enter into the offered transaction with the contractor.
XIV. Exemption of Lyomark Pharma from the duty of confidentiality
If necessary for the purpose of managing an order appropriately, we are entitled to disclose to our contractors any business secrets of the purchaser of which we have become aware during our business transaction if they are obliged to honour the same level of confidentiality as Lyomark Pharma.
Severability clause, choice of law, place of jurisdiction
- Should a clause of the contract prove invalid or impracticable, the other provisions of the contract shall remain valid and the invalid or impracticable clause shall be replaced by a provision that achieves the desired economic success intended by the agreement.
- German law applies, including the UN Convention of Vienna of 11/04/1980 governing Contracts for the International Sale of Goods (CISG).
The place of jurisdiction for all disputes arising from this contract, provided the purchaser is a businessman, is the Regional Court of Munich I, Chamber for Commercial Affairs. We may call upon any other responsible court, however.